In the Matter of Enrique C. Parada, deceased. Deborah A. Parada, respondent; Erick P. Parada, appellant. File No. 3241/14
Jonathan E. Kroll & Associates, PLLC, Garden City, NY
(Peter Contini of counsel), for appellant.
Cohen, Farmingville, NY (Michael Davicino of counsel), for
C. BALKIN, J.P. LEONARD B. AUSTIN SANDRA L. SGROI HECTOR D.
DECISION & ORDER
probate proceeding, Erick P. Parada appeals from an order of
the Surrogate's Court, Suffolk County (Czygier, S.),
dated July 30, 2015, which denied his motion to vacate his
waiver and consent to probate the last will and testament of
the decedent dated May 9, 2007, and to the issuance of
letters testamentary to the proponent, to revoke the letters
testamentary issued to the proponent, to invalidate the last
will and testament of the decedent, and, in effect, to vacate
a decree of the same court entered December 1, 2014,
admitting to probate the last will and testament of the
decedent and issuing letters testamentary to the proponent.
that the order is affirmed, with costs.
signing a waiver and consent to probate the last will and
testament of the decedent and to the issuance of letters
testamentary to the proponent, the appellant, the
decedent's son, moved to vacate the waiver and consent,
revoke the letters testamentary issued to the proponent,
invalidate the will and, in effect, vacate a decree entered
December 1, 2014, admitting the will to probate and issuing
letters testamentary to the proponent. The Surrogate's
Court denied the motion.
A party seeking to set aside a probate decree entered upon
his [or her] consent must show that such consent was obtained
by fraud or overreaching (Matter of Frutiger, 29
N.Y.2d 143), was the product of misrepresentation or
misconduct (Matter of Westberg, 254 A.D. 320), or
that newly-discovered evidence, clerical error or other
sufficient cause justifies the reopening of the
decree'" (Matter of Hall, 185 A.D.2d 322,
322, quoting Matter of Leeper, 53 A.D.2d 1054, 1055;
see Matter of Coccia, 59 A.D.3d 716, 716). "
[B]ecause vacatur disrupts the orderly process of
administration and creates a continual aura of uncertainty
and nonfinality, a probate decree will be vacated only in
extraordinary circumstances'" (Matter of
Loverme, 27 A.D.3d 747, 748, quoting Matter of
Bobst, 165 Misc.2d 776, 782; see Matter of
Saginario, 119 A.D.3d 697, 698; Matter of
Musso, 227 A.D.2d 404, 405). "An application to
vacate a probate decree is committed to the discretion of the
court" (Matter of Saginario, 119 A.D.3d at 698;
see Matter of Musso, 227 A.D.2d at 405).
the appellant alleged that he was coerced into signing the
waiver and consent based upon statements allegedly made by
the proponent's attorney to the attorney who represented
the appellant at the time he executed the waiver and consent
that, unless he executed the waiver and consent, criminal
charges for trespassing upon the decedent's house after
the decedent's death would be pursued. These allegations
were unsubstantiated. Similarly, the appellant's claim
that he received repeated telephone calls from a police
detective investigating the charges when the appellant
returned home to Florida prior to signing the waiver and
consent was also unsubstantiated. Thus, the appellant's
claim that his consent was given under duress was not
supported by the evidence in the record (see Matter of
Leeper, 53 A.D.2d at 1055).
addition, the Surrogate's Court properly found that the
appellant failed to show a reasonable probability of success
in contesting the validity of the will. The appellant failed
to rebut the presumption of regularity that the will was
properly executed given that the attorney who drafted the
will supervised its execution and, in their affidavits
accompanying the will, two disinterested witnesses swore that
the decedent signed the will in their presence (see
EPTL 3-2.1; Matter of Derrick, 88 A.D.3d 877, 879;
Matter of James, 17 A.D.3d 366, 367; Matter of
Finocchio, 270 A.D.2d 418, 418). The opinions of the
appellant's two handwriting experts were conclusory, as
neither provided any analytical basis as to how they arrived
at their conclusions that the signature on the will was not
that of the decedent (see Brown Bark I, L.P. v Imperial
Dev. & Constr. Corp., 65 A.D.3d 510, 512).
appellant's remaining contentions are without merit.
the Surrogate's Court providently exercised its
discretion in ...